DURGA CHARAN MAJI Vs. PORESH BEWA

JUDGEMENT

(1.) This appeal is by the defendant against the decision of the Subordinate Judge of Dacca reversing the decision of the Munsif. The question in controversy in this appeal is with regard to the effect of a document which runs in rather unusual term. The document is said to be a sale for a term. It is said that the executant, whose reversionary heiress the plaintiff is, owed a sum of money to the defendant's predecessor. The debt at the time of the deed amounted to Rs. 160 including principal and interest. Then the deed runs thus: "Having no means to pay money in cash, I feel necessity to sell the jote lands of the chita and bari for a term and you have expressed your willingness to take the lands in lieu of the money from the year 1299 to the year 1348 for a period of fifty years and I sell you the lands for this period." Then, it is stated: "after the end of the period, you will return the land to me without any excuse. During the period the land will remain in your possession and I shall pay the rent to the landlord." The deed is dated the 26 of Sravan 1299 B.S. The short question is whether the plaintiff is entitled to get back the land on payment of the money to the defendant within the period of fifty years. She has sought for redemption after about twenty-six years.

(2.) The plea of the defendant is that the deed is not really a sale for a term, but it was really a sale out and out, that it was drawn up in these terms in order to avoid trouble with the landlord and that the lady had subsequently surrendered the holding in favour of the father of the defendant. There was also a plea of limitation urged.

(3.) The question, therefore, is whether the document is a sale out and out or whether it is a mortgage which the plaintiff is entitled to redeem and if the plaintiff is entitled to redeem the property whether she can do so at the present moment and upon what terms.